Workplace Flexibility 2010
Summer 2007
DEFINITION OF A “DAY”
DOL Topic: C 1
PART ONE OF THIS MEMORANDUM PROVIDES A SUMMARY OF
QUESTIONS ASKED AND COMMENTS SUBMITTED IN RESPONSE TO THE
DOL REQUEST FOR INFORMATION (“RFI”) ABOUT THE DEFINITION OF A
“DAY.” 2
PART TWO OF THIS MEMORANDUM CONTAINS THE RELEVANT
STATUTORY AND REGULATORY TEXT. PART TWO ALSO LISTS OTHER
SOURCES CITED IN THE COMMENTS ABOUT THIS TOPIC.
PART ONE
The DOL requested information regarding the definition of a “day.” Currently, the
regulations state that the requirements for a “serious health condition” may include “a
period of incapacity of more than three consecutive days.” 3
With regard to the definition of a “day”, the DOL asked for comments on two topics:
!
!
The Treatment of Scheduled Holidays
The Definition of “More Than Three Consecutive Calendar Days”
ISSUE: Treatment of Scheduled Holidays
!
The RFI asked: Should scheduled holidays that occur during an employee’s fullweek absence count against an employee’s 12 weeks of FMLA leave? Under 29
C.F.R. § 825.200(f), the entire week is counted as FMLA leave if a holiday occurs within a
week taken as FMLA leave.
1
This topic is not discussed in depth in the Family and Medical Leave Act Regulations: A Report on the
Department of Labor's Request For Information, 72 Fed. Reg. 35550 (June 28, 2007), available at
http://www.dol.gov/esa/whd/FMLA2007FederalRegisterNotice/07-3102.pdf.
2
The comments reviewed herein are from employers, employer organizations, employees, employee
organizations, health care providers, and health care provider organizations. They reflect all comments
posted on regulations.gov or available via a Google search as of May 8, 2007. More detailed descriptions of
these comments are found in the “Digest of Comments Submitted in Response to the Department of Labor’s
Request
for
Information
on
the
Family
and
Medical
Leave
Act,”
available
at
http://www.law.georgetown.edu/workplaceflexibility2010/law/fmla.cfm.
3
29 C.F.R. § 825.114(a)(2)(i).
Definition of a “Day” -- DOL Topic: C
www.workplaceflexibility2010.org
1
Workplace Flexibility 2010
Summer 2007
ISSUE: Definition of “More Than Three Consecutive Calendar Days”
!
The RFI asked: Should “more than three consecutive calendar days” for a serious
health condition in 29 C.F.R. § 825.114(a)(2)(i) be defined as four days or three days
and part of the fourth day? Demonstrating that a consensus has not been reached yet,
the RFI cited the following conflicting cases:
o Russell v. North Broward Hosp., 346 F.3d 1335 (11th Cir. 2003). The court
held that the test for continuing treatment for a serious health condition could be
met by an employee whose serious health conditions lasted three full days and
part of a fourth day.
o Murray v. Red Kap Indus., Inc., 124 F.3d 696 (5th Cir. 1997). The court held
that an employee who alleges a serious health condition involving continuing
treatment by a health care provider must show a period of incapacity for at least
four consecutive days.
o Henderson v. Central Progressive Bank, No. 01-2963, 2002 WL 31086086
(E.D. La. Sept. 17, 2002). The court held that a serious health condition requires
a period of incapacity that lasts at least four consecutive days.
o Seidle v. Provident Mut. Life Ins. Co., 871 F. Supp. 238 (E.D. Pa. 1994). The
court held that the employee’s child did not have a serious health condition
because his incapacity only required him to be absent for three days. The court
read the regulation to require four or more days of absence.
o Bond v. Abbott Labs., 7 F. Supp. 2d 967 (N.D. Ohio 1998). The court held that
an employee must show a period of incapacity of at least four consecutive days.
EMPLOYER-SIDE COMMENTS
Each bold-faced heading below sets forth a particular subject of commentary from employers
or employer organizations, and is followed by explanatory text describing the comment in
more detail.
!
Treatment of Scheduled Holidays – Employers report that 29 C.F.R. § 825.200(f) should
not be changed. Scheduled holidays should continue to count against an employee’s
FMLA entitlement if the employee is absent from work for the entirety of the week during
which the holiday falls.
Definition of a “Day” -- DOL Topic: C
www.workplaceflexibility2010.org
2
Workplace Flexibility 2010
Summer 2007
EMPLOYER-SIDE COMMENTS
!
Definition of “More Than Three Consecutive Calendar Days” – Employers state that
“more than three consecutive calendar days” means four consecutive days and partial
days should not count toward the total number of days required to meet the definition of
“more than three.”
o Employers’ Suggested Changes – (1) Define “more than three consecutive days” as
requiring absence for four consecutive days. (2) A majority of the comments
suggest increasing the number of days, both consecutive and work days, required
for a period of incapacity. 4 (3) Define “more than” to explicitly require full and
complete days.
EMPLOYEE-SIDE COMMENTS
Each bold-faced heading below sets forth a particular subject of commentary from employee
organizations, and is followed by explanatory text describing the comments about this subject
in more detail.
!
Treatment of Scheduled Holidays – Employee advocates state that counting employees’
absence on holidays against employees’ FMLA leave entitlement is inconsistent with how
holidays are treated in other leave situations. Employees also note the inconsistency in
counting holidays toward total leave allotments, when employees who are on intermittent
leave during a day that they are not scheduled to work do not have that non-work day
counted against their overall allotments.
o Employees’ Suggested Changes: Modify 29 C.F.R. § 825.200(f) to preclude
employers from counting holidays as part of employees’ FMLA leave. Only the
leave that an employee actually takes should count towards an employee’s 12week entitlement. Thus, if an employee is out on FMLA leave during a scheduled
holiday, the employee should be able to use holiday leave instead of losing a day of
FMLA leave.
!
Definition of “More Than Three Consecutive Calendar Days”
o Employee advocates state that there is no basis for reading “more than three
consecutive calendar days” to require four full days of incapacity. A condition
lasting more than three days, even if it only lasts 3.5 days, meets the “more than
three consecutive calendar days” requirements found in 29 C.F.R. § 825.114. In
4
See Topic B for a description of the proposals to change the amount of time that should be required to five
or seven consecutive work days.
Definition of a “Day” -- DOL Topic: C
www.workplaceflexibility2010.org
3
Workplace Flexibility 2010
Summer 2007
EMPLOYEE-SIDE COMMENTS
the absence of any language in the rules or regulations to suggest that a four-day
rule was intended, there is no basis to create such a rule via regulation.
o Employee advocates state that “more than” three days properly reflects
congressional intent to draw a line between serious health conditions that last
longer than a few days and minor illnesses that last only a few days. Employee
advocates express concern that if the period of incapacity were extended to four full
days, some serious health conditions would be improperly excluded.
!
The American Association of University Professors expressed the view that employee
absences during holidays and breaks during the academic school year, even if otherwise
FMLA-qualifying, should not be counted against total FMLA leave allotments.
Definition of a “Day” -- DOL Topic: C
www.workplaceflexibility2010.org
4
Workplace Flexibility 2010
Summer 2007
PART TWO
THE APPLICABLE STATUTORY SECTIONS AND REGULATORY PROVISIONS RELATED TO TOPIC C HAVE
BEEN EXCERPTED BELOW. THESE PROVISIONS WERE NOT NECESSARILY CITED IN THE RFI.
STATUTE
29 U.S.C. § 2611(11)
Serious health condition - The term "serious health condition" means an illness, injury, impairment, or physical or mental
condition that involves—
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.
REGULATIONS
29 C.F.R. § 825.114(a)
For purposes of FMLA, "serious health condition" entitling an employee to FMLA leave means an illness, injury,
impairment, or physical or mental condition that involves: . . . .
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a
health care provider includes any one or more of the following:
(i) A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to
the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive
calendar days, and any subsequent treatment or period of incapacity relating to the same condition…
Definition of a “Day” -- DOL Topic: C
www.workplaceflexibility2010.org
5
Workplace Flexibility 2010
Summer 2007
29 C.F.R. § 825.200(f)
For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the
week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if for some
reason the employer's business activity has temporarily ceased and employees generally are not expected to report for
work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation
or an employer closing the plant for retooling or repairs), the days the employer's activities have ceased do not count
against the employee's FMLA leave entitlement. . . .
Definition of a “Day” -- DOL Topic: C
www.workplaceflexibility2010.org
6
Workplace Flexibility 2010
Summer 2007
MATERIALS CITED IN COMMENTS RESPONDING TO THE RFI5
Cases
!
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946).
DOL Opinion Letters & Guidance
!
Dep’t of Labor Opinion Letter, FMLA 2002-1 (May 9, 2002),
http://www.dol.gov/esa/whd/opinion/FMLA/2002_05_09_1_FMLA.pdf
!
Dep’t of Labor Opinion Letter, FMLA-70 (Aug. 23, 1995),
http://www.dol.gov/esa/whd/opinion/FMLA/prior2002/FMLA-70.pdf
!
Dep’t of Labor Opinion Letter, FMLA-20 (Dec. 7, 1993),
http://www.dol.gov/esa/whd/opinion/fmla/prior2002/FMLA-20.pdf
Other Materials
!
Janemarie Mulvey, The Cost and Characteristics of Family and Medical Leave, EMPLOYMENT
POLICY FOUNDATION, April 19, 2005.
5
Cases and materials cited in the RFI are excluded from this list. This list does not include surveys cited in
reviewed comments.
Definition of a “Day” -- DOL Topic: C
www.workplaceflexibility2010.org
7